“Overruled.”
Munoz looked confused. “Photo what?”
Hilliard plucked an exhibit from the podium, hustled with it to the stand, and set it down in front of the witness. “Let the record show that I am supplying Mr. Munoz with Commonwealth Exhibit 21, a photo array. Now, Mr. Munoz, have you seen this set of photos before?”
“Yeah.”
“And when you were shown it, didn’t you pick out the left middle picture as the woman who you saw running past your window?”
“So what?” Munoz tossed the photo array to the side, and Bennie couldn’t have done it better herself. “You asked me who is the lady I saw out my window. You said answer yes or no. You said point to the lady in the courtroom. I can’t do that and swear to God. You don’t like my answer, that’s too damn-”
“Your Honor,” Hilliard interrupted, “may we continue this discussion in chambers?”
“Objection, Your Honor.” Bennie stood as if rooted to the spot. “The prosecutor interrupted the witness’s answer. Mr. Munoz was in the middle of completing his answer.”
Judge Guthrie slammed the gavel to its pedestal. Crack! “Silence! In chambers, now, Ms. Rosato! Mr. Deputy, dismiss the jury! Mr. Hilliard, the Commonwealth’s outstanding motion to strike is granted. This colloquy is not for the record.”
“Place my running objection on the record, please,” Bennie told the court reporter, a young woman who had lifted her hands from the keyboard. “I want the record to show that Mr. Munoz’s testimony is being silenced by prosecutor Dorsey Hilliard and the Honorable Harrison Guthrie.”
“Ms. Rosato!” Judge Guthrie shouted, whirling around in his leather chair. “Don’t you dare give orders to my court reporter! Court is in recess! Counsel, in chambers! Deputy, move!”
75
Judge Guthrie stood behind his desk chair, his black robe unhooked at the top and his starchy white shirt exposed. His lined hands clutched the top of his leather chair, and Bennie wasn’t surprised that his fingertips made deep indentations in its buttery burgundy hide. The trial had veered out of his control and any guilty verdict he’d guaranteed hung in jeopardy. He didn’t look at Bennie as he spoke and he could barely keep his tone civil.
“Ms. Rosato,” he said, “I was shocked by your conduct this morning. The accusations, the innuendo, in open court!” The judge glanced at the court reporter. “But my personal feelings are of no consequence at this juncture. We must settle a legal issue of grave importance. Please state your position, Mr. Hilliard.”
“Your Honor, Ms. Rosato is intentionally confusing and manipulating the jury. She came to court today dressed identically to her client, in a gray suit with gray shoes, and she looks exactly like her client. Her scheme has succeeded in confusing a vital fact witness. Ms. Rosato cannot continue as defense counsel, Your Honor. The Commonwealth is requesting she be removed.”
Bennie almost exploded. “There’s no grounds for-”
“Quiet, Ms. Rosato!” Judge Guthrie ordered.
Hilliard edged forward on his seat. “Ms. Rosato’s conduct has been outrageous and unethical. She should be replaced by one of her associates. There would be no prejudice to the defendant, because Ms. Rosato’s associates have been in the courtroom every day.”
Judge Guthrie faced Bennie, his expression cold. “Ms. Rosato, what do you have to say for yourself?”
“Judge, I did not plan to dress like my client today. I had no idea what my client would wear. I look like my client, that’s true, but it’s unprecedented to remove me as trial counsel merely for my physical appearance. There’s no case law that holds that a client on trial for her life may not retain her lawyer of choice because that lawyer looks like her.”
Hilliard’s smooth pate snapped around. “There’s no precedent because it’s never happened. How many times you think a twin represents her twin, in a murder trial?”
“Excuse me.” Bennie talked over him, directly to Judge Guthrie. “In addition, if the Court recalls, I did attempt to withdraw my appearance in this matter after my mother’s passing, partly because of my difficulty in representing Ms. Connolly, and the Court denied my motion.”
Judge Guthrie stiffened. “This Court did not, and could not, have anticipated that you would attempt to so boldly exploit the situation.”
“I didn’t do that, Your Honor. The courtroom ID was requested by the prosecutor and the testimony was given by Mr. Munoz, the Commonwealth’s own witness. I merely acted to protect the record and the witness’s testimony, and was under a legal and ethical duty to make a mistaken identity argument at that point. The record is clear that Mr. Munoz could not make a positive ID of my client in court. The jury is entitled to weigh that testimony, as any other, and we should all be back in court right now, starting on my cross.”
“What?” Hilliard was so frustrated he banged his crutches into the soft rug. “After that stunt you just pulled? You should be held in contempt!”
“There’s no basis for a contempt citation,” Bennie shot back. “I haven’t violated a judge’s ruling.”
Judge Guthrie held up a cautionary finger. “Not so fast, Ms. Rosato.” He paused and sighed. “The Court finds itself between a rock and a hard place, counsel. The question is where we go from here. My law clerks tell me that Ms. Rosato may stay on as counsel regardless of the physical similarity between her and her client. The cases suggest, and they are scant indeed, that if the Court were to sua sponte, or on the Commonwealth’s oral motion, ask her to withdraw in these circumstances, at this point, it could constitute reversible error and create a colorable issue for appeal.”
Hilliard addressed the judge. “But going forward with Ms. Rosato prejudices the Commonwealth. We can’t do redirect on Munoz and we can’t put up the other neighbors to say they saw Connolly running from the scene, because they’ll be confused by Ms. Rosato’s appearance. It eliminates my afternoon witnesses.”
Bennie edged forward. “Your Honor, if his witnesses can’t make the ID, they can’t make the ID. If his people can say only that they saw a woman who looks a lot like me running by, then that’s not proof of identity beyond a reasonable doubt.”
“Save your closing for the jury,” Hilliard snapped, but Bennie was speaking for the record.
“Your Honor, the prosecution already has Mrs. Lambertsen’s ID. The rest of the witnesses are cumulative, and there’s no prejudice to the Commonwealth.”
“They were corroborative witnesses!” Hilliard shouted. “Don’t tell me how to try my case!”
Judge Guthrie walked around to the front of his chair and sat down slowly, his eyes avoiding both lawyers. “Mr. Prosecutor, I understand your frustration, but there are no other options at this point. We find ourselves in a quandary. The only alternative is a mistrial, and the Court doubts the Commonwealth will request that.”
“Absolutely not,” Hilliard said. “The Commonwealth can’t take the chance on double jeopardy attaching. Then we couldn’t retry Connolly.”
Judge Guthrie nodded slowly, his gaze straying from both lawyers to the window. “Then we must go forward, after lunch. Court resumes, at one-thirty.”
“Thank you, Your Honor,” Hilliard said, almost sarcastically, hoisting himself to his feet, and Bennie followed him to the door, without a word to Judge Guthrie. The judge’s mood mirrored Hilliard’s. They were both trapped and hated her for it. It gave Bennie no satisfaction. She hadn’t acted to confuse Munoz, Connolly had, and Bennie no longer wanted to cheat to win. Worse, the victory she’d gained was only temporary, and the forces behind the conspiracy would redouble their efforts.